By Brad Ryder
Prior to investigating a complaint of employment harassment or discrimination, it is imperative that a company have a process in place.
One of the keys is an employee handbook that informs employees of their rights under applicable federal and state law. The employee handbook must include a policy that identifies who is to be notified in the event of alleged discrimination, harassment, retaliation, requests for leave / accommodations, and other questions / issues involving employment practices.
The policy should not be limited to sexual harassment – it needs to cover other types of harassment or discrimination protected under applicable federal and/or state law (i.e., race, national origin, religion, disability, age).
The employee handbook must set out a procedure for reporting any such conduct. The company needs to have a uniform and centralized reporting procedure. The policy should instruct employees to submit complaints to the Human Resources Department.
Even if a complaint of discrimination or harassment is not reported in accordance with the policy or procedure, the supervisor or manager who received the complaint must promptly inform the Human Resources Department, so that the complaint can be investigated pursuant to federal and state law and the company’s procedures.
All employees should receive periodic training in relation to employee conduct (i.e., discrimination and harassment), proper communications with internal and external customers, resources for employee personal issues, proprietary or classified information handling, use of company property (computer, telephone, vehicles), etc.
Employees in the Human Resources Department must receive additional training as to the procedures to be followed for reporting complaints or concerns involving employment-related issues, proper documentation of such complaints or concerns, investigations of such complaints or concerns, how to discipline employees, etc.
One of the key considerations is selecting who should conduct any investigations. The employee selected to conduct the investigation may later have to testify on behalf of the company as to how the investigation was conducted, the company’s findings, and the recommended course of action. Thus, this decision should be made well in advance of the company receiving a complaint of discrimination or harassment.
It is also advisable to have an alternate in the event that the person primarily responsible for conducting the investigation is unable to do so, whether due to unavailability, a conflict, or for other reasons.
In selecting the person to conduct the investigation, the company should consider the following:
- How long have they worked for the company?
- Do they have sufficient prior training and experience?
- Will they be thorough?
- Will witnesses feel comfortable talking to them?
- Will they keep confidential the information obtained?
- Will they remain impartial?
It is imperative that employees in the Human Resources Department who are responsible for investigating allegations of harassment or discrimination receive training as to the proper procedures for conducting investigations prior to the actual need to conduct such an investigation.
By developing a process for conducting investigations of employment-related issues prior to receiving a complaint of harassment or discrimination, a company will be a better position to promptly respond and conduct a comprehensive investigation, when the need arises.
If you have questions about drafting employment policies, developing an investigation plan, conducting an investigation of harassment or discrimination, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.
